Professor William B. Allen, former Chairman of the U.S. Commission on Civil Rights, explains how Federal Indian Law violates the civil rights of tribal members by placing them under the plenary power of Congress and of their tribal laws instead of granting them their individual rights as U.S. citizens under the Constitution.

William B. Allen, formerly Chairman of the U.S. Commission on Civil Rights, is Emeritus Professor of Political Philosophy in the Department of Political Science and Emeritus Dean, James Madison College, at Michigan State University. Further biographical information appears at the bottom, along with video of an important speech he gave.

In this essay Professor Allen says that the existence of federally recognized Indian tribes gravely damages the civil rights of all individual tribal members. Federal Indian Law takes away the equality given to all individual Indians in 1824 when they were granted full citizenship. Instead, the Indian Reorganization Act of 1934, which is the basis for all new tribal recognitions, imposes upon them government wardship, the plenary power of Congress, and legal inferiority.

Professor Allen singles out the Akaka bill, which he says "defines certain citizens in Hawaii as a sub-category of citizens termed 'indigenous,' and who are therefore subject to federal wardship. Persons who are 'wards' can make no reasonable rights claims; for them, rules for their conduct must come before any rights they can enjoy. While children have rights as human beings, they are in fact wards who cannot defend their rights. They benefit rather from adult proxies, whose own individual rights serve to protect not only themselves but their offspring."

FOREWORD to the new book
"Voices From Across America"
Prepared and edited for the 112th United States Congress
by
Citizens Equal Rights Alliance (CERA) and
Citizens Equal Rights Foundation (CERF)
2011
["Voices from Across America, 81 pages, has been delivered to every Congressional office in Washington D.C. Copies are available at $5.00 each plus postage by writing to VOICES, PO BOX 1412, Vernon, NY 13476]

We know the United States as a government of laws. We like it that way. It means that the settled deliberations of communities and not the arbitrary whims of officials fix our notions of public order and welfare. That makes the restraints and permissions of laws much more predictable – and safer. Even here, though, free citizens commit to law abidingness only because they can count on laws being narrowly tailored to defend and support the exercise of individual rights. For, it is the recognition that we have such rights that persuades us, in the first instance, to permit law-making. If laws are the rules of community life, the preservation of rights is the game the rules aim to sustain.

Voices from America reinforces the public’s awareness that those who make the rules must consistently consult the purpose or end of the rule-making in order for the rules to serve their proper function. Yet, in too many instances (though not yet most), the opposite is witnessed, and nowhere is this more
apparent than in the case of Federal Indian Law.

The 1924 blanket grant of citizenship to all American Indians proved to be the gift of an “Indian giver,” for a decade later Congress passed an Indian Reorganization Act, assuming a “plenary power” which no mere delegated authority can exercise over citizens. Congress reasserted authority over tribes as wards of the federal government. {1} But once tribal members had became U. S. citizens they were no longer “outsiders.”

This claim of total power, then, means that Congress claimed authority under the Constitution to treat citizens as dependent wards. The implications for all citizens, and not merely Indians, are obvious.

And if it were not obvious, the so-called “Akaka Bill,” still pending in Congress, would make it so. For that proposed law defines certain citizens in Hawaii as a sub-category of citizens termed “indigenous,” and who are therefore subject to federal wardship. Persons who are “wards” can make no reasonable rights claims; for them, rules for their conduct must come before any rights they can enjoy. While children have rights as human beings, they are in fact wards who cannot defend their rights. They benefit rather from adult proxies, whose own individual rights serve to protect not only themselves but their offspring.

Respecting people’s rights, the United States Constitution prohibits the government classifying citizens by race, and the prohibition is absolute. Accordingly, the assertion of authority over Indians, per se, and Indian tribes in consequence, exceeds the authority of Congress every bit as much as it would if urged with reference to the Amish. That is why the emancipation of Indians from an excessive claim of political power is the necessary condition to protect not only Hawaiians but, indeed, all United States citizens from an aggrandizing federal power.

One area where we could see the effect of this danger is the federal government’s continuing campaign of transforming fee simple property rights into “sovereign Indian territory” – a major component in the growth of Indian gaming in recent years. When tribal recognitions require subordinating non-Indian municipal and state jurisdictions to manufactured sovereignties taking orders from federal officials, the rights of all citizens and not merely Indians have been invaded. This effect was well summarized in Carcieri pleadings:

The plea voiced in this volume is to recognize equal rights for all, and to limit rule-making (or law making) to what reinforces equal rights. While federal Indian policy is and will remain for a time yet extremely complicated, there is no good reason those complications should reach into the rights commonly enjoyed by all by virtue of their very humanity. And none is more important than the common right of self-government.

Indian policy has its roots in the experience of the American Revolution and its aftermath. “The three types of colony—provincial, proprietary, and charter—exercised varying degrees of self-government.” (1 Story, §159) By the time of the Revolution, however, all the colonies maintained that their authority
to govern themselves derived from the British Crown. They argued that they were subjects of the King rather than of Parliament, which latter, they claimed, could not rightfully interfere with their internal affairs. (Bailyn, 224-25) They did not borrow their relationship to the Indians from England, because that would tend literally to undermine justifications of American independence and, more importantly, to surrender the claim to recognize principles of human rights, newly enunciated.

1950s Indian “self-determination” originated in the 1834 United States Trade and Intercourse Act: “That so much of the laws of the United States as provides for the punishment of crimes committed within any place within the sole and exclusive jurisdiction of the United States, shall be in force in the Indian Country: Provided, the same shall not extend to crimes committed by one Indian against the person or property of another Indian” (1 Cohen 2-3).

Primitive “self-government” was a federal license for Indians to abuse one another, even if it did convey by implication a kind of racially construed “sole and exclusive jurisdiction” over tribes themselves. U. S. jurisdiction must follow the power to punish crimes by non-Indians against Indians and crimes by Indians against non-Indians; so tribes did not actually have “sole and exclusive jurisdiction” within their tribal lands. That is why “Indian Country” was defined to be “country within which Indian laws and custom and federal laws relating to Indians are generally applicable.”

The concession that Indian tribes can handle crimes of Indians against Indians produces a jurisdiction as to race alone. If that ever made sense (and I doubt that it did), it could only do so in the case that Indians were regarded as “outsiders”, not a part of the government of the United States and therefore not included within its guarantees of individual rights. When Indians became a part of US, everything changed.

The time has come for those lawmakers who have slept van Winkle-like through that massive change to wake up and redeem the promise of America – Rights before Rules!

1. See “THE WHEELER-HOWARD BILL – QUESTIONS AND ANSWERS” in BULLETIN, MISSION INDIAN AGENCY, Riverside, California, April 16, 1934:
Q. Will this bill end Federal guardianship of Indians?
A. This bill specifically provides, in section 11 of title 1, that Federal guardianship of Indians and tax exemption of Indian lands shall be continued.

2. Lana E. Marcussen, Brief for Citizens Equal Rights Foundation and The RISC Foundation, Inc. as Amici Curiae supporting petitioners in the Supreme Court of the United States, CARCIERI V. KEMPTHORNE, et al, on Petition for A Writ of Certiorari To the United States Court of Appeals for the First Circuit.

Emeritus Professor of Political Philosophy in the Department of Political Science and Emeritus Dean, James Madison College, at Michigan State University.

2008-09: Visiting Senior Scholar in the Matthew J. Ryan Center for the Study of Free Institutions and the Public Good at Villanova University.

He also served previously on the National Council for the Humanities and as Chairman and Member of the United States Commission on Civil Rights.

He was recently the Ann & Herbert W. Vaughan Visiting Fellow in the James Madison Program on American Ideals and Institutions at Princeton University.

He has published extensively. In 2009 appeared Re-Thinking Uncle Tom: The Political Philsosphy of HB. Stowe (Lexington Books). In 2008 appeared George Washington: America’s First Progressive (Peter Lang, Inc), and The Personal and the Political: Three Fables by Montesquieu (UPA). He previously published many other books, journal articles, reviews, and encyclopedia entries, including articles in American Political Science Review; Cardozo Journal of International and Comparative Law; College Teaching; Educational Researcher, Interpretation: A Journal of Political Philosophy; Proceedings: Statistics, Science and Public Policy; Publius: The Journal of Federalism; The Good
Society: A PEGS Journal; Rutgers Law Review; and San Diego Law Review.

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** Note by website editor Ken Conklin:
Professor Allen gave a major speech at the annual national convention of the Citizens Equal Rights Alliance in Washington, D.C. on March 5, 2007. The speech can be watched on four YouTube videos as follows:

See also this closely related webpage by Ken Conklin regarding the undemocratic process whereby the Akaka tribe (or its local state-recognized tribe) will be created, and how the rights of ethnic Hawaiians will be violated in specific ways according to whether they join the tribe or do not join the tribe.